78 P. 705 | Wyo. | 1904
Charles Hecht and John F. Carey, respectively plaintiff and defendant in error, were named as executors in the will
Section 4622, Revised Statutes, above referred to, provides for the suspension of the powers of the executor when, among other causes, the judge has reason to believe that such executor “has permanently removed from the state.” And Section 4623 provides that if upon the hearing the court “is satisfied that there exists cause for his removal, his letters must be revoked.” Plaintiff in error alleges that the orders suspending and removing him were erroneous.
There can be no question that, under the general rule, and independent of statute, a non-resident of the state in which the will is admitted to probate may qualify and act as executor. (11 Am. & Eng. Ency., 753, and authorities cited.) Our statute (Section 4570) clearly authorizes the appointment of a non-resident as executor, provided he is a resident and citizen of the United States. Moreover, while Section 4637 expressly declares that no person is competent to serve as administrator who is not a bona fide resident of this state, Section 4628, in detailing the disqualifications which debar a person from serving as executor, significantly omits the fact of non-residence from the enumeration. It being the law of this state, then, that a non-resident may qualify and serve as an executor, is it competent for the court, by virtue of Section 4622, providing for his suspension when he “has permanently removed from the state,” to suspend or remove an executor who was a non-resident when letters testamentary were issued to him, upon the sole ground of his continued non-residence? Very clearly, we think, it is not, and that the statute does not require or permit such a construction.
These provisions of our code were adopted from that of California, and we think the view taken of the matter by the Supreme Court of that state is the reasonable one. A
In the case under consideration, however, it is not only recited in the order that the plaintiff in error was removed •expressly upon the ground and for the reason of his non-residence, and that no other evidence was introduced upon the hearing than the record and papers on file in the matter, but it is also recited that he was present in court at the hearing, and it appears from the papers in the casé filed In this court that, within a month of his suspension, he was personally present in the state and attending to the business of the executorship. Indeed, he seems to have participated personally in the last business of the estate prior to the
But counsel for defendant in error alleges in his brief that a hearing was had on the petition of one Sophia Pickard práying that the inventory and appraisement filed by the executors be set aside and that the order of the court confirming the sale of certain real estate be vacated; and that evidence was taken on this and other hearings in the course of the 'administration which, if before this court, would show such misconduct as executor upon the part of plaintiff in error as made it the duty of the court under the law to suspend his powers. That, therefore, even if it should be found that the cause of removal stated in the order was not sufficient, or was not the real cause upon which the court acted, this court ought not to set aside such order. And counsel has filed a motion “for an order to the clerk of the District Court directing said clerk to send up a full transcript of the record and the testimony taken in this case.”
But it must be borne in mind that this court has no original jurisdiction in the matter, but its jurisdiction is purely appellate. Under the statute, in the case of charges against an executor, he must be cited to appear and show cause why he should not be removed. Pie may answer or demur, and the issue thus raised must be determined by the court or judge. By the express terms of the order of removal in this case, the only issue heard or determined was the question of his non-residence. No issue involving misconduct upon his part was determined by the court below. So that, if evidence upon that question was received by the District Court and if it were before us, it would be entirely irrelevant and immaterial as affecting the controversy in
It is also urged that all the evidence taken in the court below not being before this court, the judgment of the lower court ought not be disturbed. But it is sufficient to say that no question of the weight or sufficiency of evidence is involved in the proceedings in this court. The order itself recites that it was admitted upon the hearing that plaintiff in error was a non-resident of the state and had been ever since a time prior to "the date of his appointment. There is 110 exception or objection to that finding and he was removed solely upon that ground. No amount of evidence would tend to illuminate the proposition. It is purely a question of law.
The several orders of the court below suspending the powers of the plaintiff in error as executor and removing him from his executorship will be set aside and reversed.
Reversed.